Anaya Nolan
The question of whether the President of the United States can declare martial law is a complex one. While the US Constitution does not define martial law or specify who can declare it, and neither does federal law, it has been declared over 60 times in US history, mostly by state and local officials. The Supreme Court has never explicitly ruled on whether the President can declare martial law, and legal scholars are divided on the issue. Some believe the President has the executive power to do so, while others argue that congressional authorization is required. The Insurrection Act, a federal law enacted in 1807, allows the President to deploy military forces domestically to suppress insurrections, rebellions, or domestic violence, but this is not the same as declaring martial law.
| Characteristics | Values |
|---|---|
| Who can declare martial law? | The US Constitution does not specify who can declare martial law. However, it has been declared by the President, Congress, state governors, and the military. |
| What is martial law? | Martial law refers to instances when a nation's armed forces assume the governance of an area, typically during an emergency or when civilian authority has stopped functioning. |
| What happens during martial law? | All civilian laws are suspended, and military leaders may create and enforce their own laws, detain people, and take over local governments. Civil liberties and constitutional rights may be suspended. |
| When has martial law been declared in the US? | Martial law has been declared over 60 times in US history, mostly by state and local officials. Examples include the Civil War, the Battle of New Orleans, the Great Chicago Fire of 1871, the San Francisco earthquake of 1906, and the Civil Rights Movement. |
| Can the President declare martial law? | The President's power to declare martial law is ambiguous. The Constitution does not explicitly grant this power to the President, and the Supreme Court has never specifically ruled on it. Some scholars believe the President has executive power to declare it, while others argue that congressional authorization is needed. |
| Can Congress declare martial law? | Congress may be the only governmental branch that can legally declare martial law, as it has the power to declare war and pass legislation essential to the prosecution of war. Congress has declared martial law during the Civil War. |
| Can state officials declare martial law? | Yes, almost all state constitutions allow the state governor or legislature to impose martial law. State declarations of martial law must abide by the US Constitution and are subject to review in federal court. |
| What is the Insurrection Act? | The Insurrection Act is a federal law that allows the President to deploy military forces domestically to suppress insurrections, rebellions, or domestic violence and enforce federal laws and maintain public order. |
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What You'll Learn
The US President's authority to declare martial law
The US Constitution does not define martial law, nor does it specify who can declare it. The US President does not have the explicit authority to declare martial law. However, the modern interpretation of the Constitution allows the President and state officials to declare "degrees of martial law in specific circumstances".
The US Constitution grants Congress the power to declare war and provide for carrying on war. This power extends to all legislation essential to the prosecution of war, except those interfering with the command of forces and the conduct of campaigns. The President, as Commander-in-Chief, has the power and duty to enforce these laws.
Some scholars believe the President has the executive power to declare martial law. Others argue that the President requires Congressional authorization to impose martial law in a civilian area. Congress may be the only governmental branch that can legally declare martial law, and the President can only act according to its actions.
The Supreme Court has never specifically ruled that the President or federal government can declare martial law. However, the Court has held that individual states have the power to declare martial law, and such a declaration is valid if authorized by the Constitution or laws of the state. State constitutions allow the state governor or legislature to impose martial law.
Martial law is a vague legal term for when military authorities take control of civil governance and law enforcement. It is intended to be reserved for times of extreme emergencies when existing civilian government and law enforcement have ceased to function or become ineffective. During martial law, the executive or military leaders may suspend certain civil liberties and enforce their own laws.
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Martial law and the suspension of habeas corpus
The US Constitution does not define martial law, nor does it specify who can declare it. However, the US President and Congress have the power to impose martial law, as they can be in charge of the militia. Additionally, in nearly every state, the governor has the power to impose martial law within their state's borders.
Martial law has been imposed at least 68 times in limited, usually local areas of the United States. It has been declared twice for war or invasion, seven times for domestic war or insurrection, eleven times for riot or civil unrest, 29 times for labour dispute, four times for natural disaster, and fifteen times for other reasons.
Habeas corpus, the right of any person under arrest to appear in person before the court to ensure they have not been falsely accused, has been suspended federally only once, in 1863 during the Civil War. The US Constitution protects this right in Article 1, Section 9: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
President Lincoln initially suspended habeas corpus in Maryland in 1861 to try large numbers of civilian rioters in military courts and prevent the movement of Confederate troops on Washington. In 1863, he imposed Congressionally-authorized martial law on Kentucky, Maryland, and Missouri, which allowed him to suspend habeas corpus and civil rights throughout the US. The Supreme Court later ruled that Lincoln's imposition of martial law by way of the suspension of habeas corpus was unconstitutional in areas where local courts were still in session.
While a declaration of martial law may be accompanied by a suspension of habeas corpus, they are distinct concepts. Suspending habeas corpus does not imply any unusual role for the armed forces.
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Instances of martial law in US history
The United States has a long history of declaring martial law, with federal and state governments imposing it over 60 times. However, the Constitution does not define martial law and does not specify who can declare it. Despite this ambiguity, several presidents and state governors have imposed or approved declarations of martial law.
During the American Revolutionary period, British authorities imposed martial law in several instances to suppress colonial resistance and maintain control. For example, in 1774, in response to the Boston Tea Party, the British Parliament passed the Intolerable Acts, which placed Boston under martial law by closing its port and restricting town meetings. Similarly, in 1775, Lord Dunmore, the royal governor of Virginia, declared martial law, offering freedom to indentured servants and enslaved individuals who joined British forces against the rebelling colonists.
In 1863, during the Civil War, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri, suspending habeas corpus and civil rights. This was challenged in Ex parte Milligan, and the Supreme Court ruled that Lincoln's imposition of martial law was unconstitutional in areas where local courts were still operational.
In the 20th century, martial law was often declared during labour disputes and strikes. For instance, in 1903, Colorado Governor James Peabody declared martial law in Cripple Creek and Telluride to break a peaceful strike by the Western Federation of Miners. The Colorado National Guard conducted mass arrests, even ignoring state court orders to release the prisoners.
Other notable instances of martial law in US history include:
- New Orleans during the Battle of New Orleans, imposed by General Andrew Jackson
- Great Chicago Fire of 1871
- 1906 San Francisco earthquake
- Omaha Race Riot of 1919
- Lexington Riots of 1920
- Hawaii after the Japanese attack on Pearl Harbor in 1941
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The role of Congress in declaring martial law
Firstly, it is important to note that the power to declare martial law is not explicitly granted to the President by the Constitution. The Constitution Annotated highlights two competing theories regarding the source of the power to declare martial law. One theory suggests that martial law arises from the government's duty to "maintain public order" and keep the peace during times of "supreme political authority," such as in cases of rebellion or invasion as outlined in Article 1, Section 9 of the US Constitution. This interpretation allows for the valid and constitutional use of martial law during wartime.
However, the power to declare martial law is not solely vested in the executive branch. According to national security law scholar Joseph Nunn, martial law represents a "dramatic departure from normal practice" in the US, as federal laws typically prevent the military from acting within the country. By declaring martial law, the government assumes governance of an area, giving a military commander virtually unlimited authority. Therefore, Congress, as the legislative branch, plays a critical role in checking the executive's power in this context.
Throughout history, Congress has been involved in authorizing or reviewing declarations of martial law. For example, in 1878, Congress passed the Posse Comitatus Act, which prohibits US military involvement in domestic law enforcement without congressional approval. Additionally, in 1942, Congress amended the Insurrection Act, granting the President new powers to use the military for domestic disturbances, terrorism, and insurrection. This amendment changed the focus from "Insurrection Act" to "Enforcement of the Laws to Restore Public Order." However, it is worth noting that this expansion of presidential power was met with criticism and concerns about its ambiguity.
In conclusion, while the role of Congress in declaring martial law is not explicitly defined, it is clear that Congress plays a significant role in shaping how martial law can be implemented through legislation and oversight. The dynamic between the executive and legislative branches in this context is a delicate balance of powers, with Congress acting as a crucial check on the President's authority to ensure that martial law is declared and executed within constitutional boundaries.
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State officials' power to declare martial law
The US Constitution does not define martial law and does not specify who can declare it. However, state officials do have the power to declare martial law. In nearly every state, the governor has the power to impose martial law within the borders of the state. State constitutions allow the state governor or legislature to impose martial law.
State officials have sometimes declared martial law in response to violent civil unrest or natural disasters, such as the Akron Riot of 1900 or the 1900 Galveston hurricane. In the aftermath of Hurricane Katrina in 2005, the military deployed helicopters along the Gulf Coast to carry out search-and-rescue missions that local governments were unable to do themselves. Far more often, state officials have used martial law to break labor strikes on behalf of business interests. For example, in September 1903, at the request of mine owners, Colorado Governor James Peabody declared martial law in Cripple Creek and Telluride to break a peaceful strike by the Western Federation of Miners.
States may declare martial law whenever it is authorized by state law, and federal courts are likely to defer to a state governor’s decision that doing so was necessary. However, the Constitution and valid federal laws will still constrain states’ conduct under the declaration, and judicial review will be available in federal court. The exact scope and limits of martial law will thus remain unclear until Congress and state legislatures enact new laws that better define them.
Although the Supreme Court has held that states can declare martial law, it has never specifically held that the president can. Therefore, it's unclear whether the president can legally declare martial law. Despite this, several presidents throughout history have done so.
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Frequently asked questions
The President of the United States (POTUS) does not have the explicit authority to declare martial law. The US Constitution does not define or specify who can declare it. However, several presidents have imposed or approved declarations of martial law throughout history.
Martial law is a vague term for when military authorities take control of civil governance and law enforcement. It is intended to be used in extreme emergencies when civilian governments and law enforcement are ineffective or have ceased to function.
Yes, the POTUS can deploy troops to assist civilian law enforcement. The Insurrection Act of 1807 allows the POTUS to deploy military forces domestically to suppress insurrections, rebellions, or domestic violence.
Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided. Congress has the power to declare war and pass legislation for carrying it out.
Yes, state governors can declare martial law. Almost all state constitutions allow the governor or legislature to impose it. State officials' actions under the declaration must abide by the US Constitution and are subject to review in federal court.
